The Journal of Contemporary Legal Issues


Michael Perry’s lifelong project has been to give a philosophical account of human rights, beginning with its foundational basis and ending with specific prescriptions for controversial cases. His writing is notable for the moral urgency he brings to the task—an urgency that is often underscored by his conscientious willingness to engage with objections and to rethink his arguments. For most scholars, such willingness is the only opportunity we have in our work to display the virtue of courage. It is an opportunity too often declined, but never by Perry. All this makes him admirable, not only as a scholar, but also as a human being.

Human rights are increasingly a matter of international consensus. Even the most abusive countries are unwilling to be seen as rejecting the political morality of human rights. Perry aims to articulate the basis of this consensus, and what it ought to amount to in practice.

Any proposal for a global political morality must answer several mutually complicating questions. What is the basis of the morality— why should anyone embrace it? What is its content? What is the relation between that content and what people tend to want or need? How is it to be implemented? If the judiciary is to play a role in implementing it, what should that role be?

Perry’s most recent book, A Global Political Morality, is spectacularly ambitious, because it tries to answer all of those questions and to make the answers fit together. The kind of synoptic perspective he presents is enormously valuable. It is important to know whether our ideas form a coherent whole. The answer to each of these questions is likely to be influenced by the answers to each of the others, and the alleged lines of entailment are particularly clear and well worked out in Perry’s account.

There is, however, tension within that account. This is not a complaint against Perry so much as a statement of our predicament. Perry’s answers are each, standing alone, well worked out and thoughtful. The tension among them is one that we all have to deal with.

The basic problem is that Perry’s claims rest at many points on controversial and undefended value choices. They hang together in that all are attractive, and they do not contradict one another. They forcefully state a political ideal. But the claims of entailment are unpersuasive. What he offers is less a philosophical account than a set of articles of faith.

Part I of this essay examines Perry’s account of the foundations of human rights, which, he shows, ultimately rest on revulsion against unnecessary suffering rather than any set of propositions. This conclusion is bad news for any effort to deduce specific rights. Part II illustrates this difficulty by critiquing his claims for a human right to democratic governance, which he takes to encompass rights to intellectual freedom and moral equality. Part III similarly critiques his neo-Thayerian argument for deferential judicial review. Part IV argues that human rights are best understood as resting on an overlapping consensus among people with radically inconsistent comprehensive views. Part V examines Perry’s claim for a “right to moral freedom,” which he takes to mean a right to live one’s life in accord with one’s religious and/‌or moral convictions and commitments. I argue that such a right is too vague to be administrable. Part VI responds to Perry’s critique of my own work, in which I claim that American law treats religion as a distinctive good, understood at a high level of abstraction. That body of law is vague, but it is more specific than Perry’s “right to moral freedom,” and it has been the basis of America’s remarkably successful response to religious diversity.





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Larry Alexander & Steven D. Smith

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